418 U.S. 930 | SCOTUS | 1974
Dissenting Opinion
dissenting.
Petitioners were enjoined by the Circuit Court for Prince Georges County, Maryland, from selling a group of allegedly obscene books, on the authority of Art. 27, §§418 and 418A, of the Annotated Code of Maryland. Section 418A grants jurisdiction to the circuit courts to enjoin the sale or distribution of any publication which is “obscene” within the meaning of § 418. Section 418
It is my view that “at least in the absence of distribution to juveniles or obtrusive exposure to unconsenting adults, the First and Fourteenth Amendments prohibit the State and Federal Governments from attempting wholly to suppress sexually oriented materials on the basis of their allegedly 'obscene’ contents.” Paris Adult Theatre I v. Slaton, 413 U. S. 49, 113 (1973) (Brennan, J., dissenting). It is clear that, tested by that constitutional standard, § 418A, as it incorporates the term “obscene” in § 418, is constitutionally overbroad and therefore invalid on its face. For the reasons stated in my dissent in Miller v. California, supra, at 47,1 would therefore grant certiorari, and, since the judgment of the Maryland Court of Appeals was rendered after Miller, reverse.
Moreover, on the basis of the Court’s own holding in Jenkins v. Georgia, ante, p. 153, its denial of certiorari is improper. As.permitted by Rule 21 (1) of the Rules of this Court, which provides that the record in a case need not be certified to this Court, the petitioners did not certify the allegedly obscene materials involved in this case. It is plain, therefore, that the Court, which has not requested the certification of those materials, has failed to discharge its admitted responsibility under Jenkins independently to review those materials under the second and third parts of the Miller obscenity test. Nor can it be assumed that the court below performed such a review, since that responsibility was not made clear until Jenkins. Petitioners have thus never been provided the independent judicial review to which the Court held them entitled in Jenkins. At a minimum, the Court should vacate the judgment below and remand for such a review.
Although four of us would grant certiorari and reverse the judgment, the Justices who join this opinion do not insist that the case be decided on the merits.
Lead Opinion
Ct. App. Md. Certiorari denied. Mr. Justice Douglas, being of the view that any state ban on obscenity is prohibited by the First Amendment, made applicable to the States by the Fourteenth (see Paris Adult Theatre I v. Slaton, 413 U. S. 49, 70 (1973) (Douglas, J., dissenting)), would grant certiorari and reverse the judgment below.